Sanchez v. Manufacturing ( 2017 )

 LOUIS SANCHEZ v. EDSON
MANUFACTURING ET AL.
(AC 38480)
Alvord, Sheldon and Mullins, Js.
Syllabus
The plaintiff appealed to this court from the decision of the Workers’ Com-
pensation Review Board affirming the decision of the Workers’ Compen-
sation Commissioner that the plaintiff was not entitled to certain
temporary partial or total disability benefits. The plaintiff, who had
undergone two prior surgeries on his left shoulder, claimed that he
injured that shoulder during his employment with the defendant manu-
facturer, E Co., when he moved a barrel and felt a pop in the shoulder.
Thereafter, an independent surgeon, S, who had been selected by E Co.,
examined the plaintiff and concurred with the determination by the
plaintiff’s treating physician, O, that the plaintiff was suffering from a
fracture and lesions in his left shoulder. S, who did not have the plaintiff’s
entire prior medical history when he examined the plaintiff, determined
that the fracture and lesions were not caused in the incident in which
the plaintiff moved the barrel, which he determined caused nothing more
than a temporary strain of the plaintiff’s left shoulder. After obtaining
additional prior medical records of the plaintiff, S affirmed that finding
in a subsequent addendum to his medical report. After O examined the
plaintiff and recommended that a third surgery be performed on the
plaintiff’s shoulder, the commissioner ordered the plaintiff to undergo
an examination by B, a surgeon chosen by the commissioner. B deter-
mined that the fracture and lesions in the plaintiff’s left shoulder were
attributed to the barrel incident. The commissioner found that S’s opin-
ion was more persuasive than those of O and B, and concluded, inter
alia, that the plaintiff had injured his left shoulder in the course of his
employment for which he was entitled to receive certain temporary
total disability benefits, but that the fracture and lesions were not caused
by the barrel incident. The commissioner, thus, denied the plaintiff’s
claim for certain temporary partial disability benefits. Held:
1. The board properly determined that the commissioner’s findings concern-
ing the cause and extent of the plaintiff’s disability were supported by
sufficient underlying facts and that the inferences drawn from those
facts were reasonable and legally permissible:
a. The board did not err in finding that S provided a reasonable basis
for his opinion, which was supported by sufficient subordinate facts as
to constitute competent medical evidence on which the commissioner
properly could rely in making his findings; S physically examined the
plaintiff, performed a neurological assessment of him, reviewed medical
records from O and twice reviewed additional medical records that he
did not have at the time he examined the plaintiff, and S’s written
opinion was not so contradicted by his deposition testimony as to
render it speculative or conjectural.
b. The plaintiff’s claim that, because the medical examiners did not
testify before the commissioner, this court should depart from the
degree of deference usually afforded to the commissioner’s credibility
determinations and determine the appropriate weight to afford the
opinions of the medical experts was unavailing; there was no reason
for this court to give less deference to the commissioner’s credibility
determinations where, as here, the commissioner was not presented
with only written reports of nontestifying witnesses, and his credibility
determinations and findings were clearly influenced by the plaintiff’s
live testimony that he never engaged in weightlifting or other forms of
physical exercise, which was directly contradicted by O’s medical notes
and statements from the plaintiff’s former coworkers.
2. The board did not abuse its discretion in not remanding the matter to
the commissioner for an articulation as to why the commissioner, in
rendering his decision, disregarded the opinion of B, the medical exam-
iner chosen by the commissioner to examine the plaintiff; the board,
guided by the state regulation (§ 31-301-3) that governs the requisite
content of a commissioner’s decision, determined that the commission-
er’s decision complied with the standard for decisions that do not rely
on the opinion of a medical examiner chosen by the commissioner, and
this court deferred to the board’s interpretation and construction of its
own regulation.
Argued February 6—officially released August 1, 2017
Procedural History
Appeal from the decision by the Workers’ Compensa-
tion Commissioner for the Sixth District dismissing in
part the plaintiff’s claim for certain disability benefits,
brought to the Workers’ Compensation Review Board,
which affirmed the commissioner’s decision, and the
plaintiff appealed to this court. Affirmed.
Frank V. Costello, with whom, on the brief, was Aus-
tin Berescik-Johns, for the appellant (plaintiff).
Marian Yun, for the appellees (defendants).
Opinion
SHELDON, J. The plaintiff, Louis Sanchez, appeals
from the decision of the Workers’ Compensation
Review Board (board) affirming the decision of the
Workers’ Compensation Commissioner for the Sixth
District (commissioner), who dismissed, in part, his
claim for workers’ compensation benefits pursuant to
General Statutes §§ 31-307 and 31-308 (a). On appeal,
the plaintiff claims that the board erred (1) in affirming
the commissioner’s decision that the plaintiff was not
entitled to temporary partial or temporary total disabil-
ity benefits from August, 2013 to July, 2014, because
the commissioner’s finding as to the nature and extent
of the plaintiff’s workplace injury was not supported
by sufficient subordinate facts; and (2) in not remanding
this case to the commissioner with instructions that he
articulate why, in reaching his decision, he disregarded
the opinion of his own medical examiner as to the
nature and extent of the plaintiff’s injury. We affirm the
decision of the board.
The following facts and procedural history are rele-
vant to this appeal. In 1992, the plaintiff was hired by
Celus Fasteners, a Massachusetts manufacturer, where
he worked for approximately sixteen years making riv-
ets. When Celus Fasteners went bankrupt, the plaintiff
took a job with Metz Personnel (Metz), also in Massa-
chusetts, where he worked as a laminator. On July 23,
2008, while working for Metz, the plaintiff tripped and
fell, landing on his left shoulder. Following his fall,
the plaintiff began to experience sharp pains in his
shoulder. Although the plaintiff was given a cortisone
injection for his shoulder injury and underwent a course
of physical therapy, his shoulder pain persisted for sev-
eral months. Thus, in March, 2009, the plaintiff con-
sulted with an orthopedic surgeon, Dr. Ergin,1 about the
advisability of undergoing surgery on his left shoulder
joint. After examining the plaintiff, however, Ergin con-
cluded that surgery on the plaintiff’s left shoulder joint
was unnecessary. Instead, Ergin gave the plaintiff two
additional cortisone injections and instructed him to
seek a second opinion if he wanted to pursue surgery.
In accordance with Ergin’s instructions, the plaintiff
consulted with and was examined by James D. O’Hol-
leran, an orthopedic surgeon. After reviewing a mag-
netic resonance imaging (MRI) scan of the plaintiff’s
shoulder, O’Holleran opined that the plaintiff was suf-
fering from a torn rotator cuff, AC joint arthrosis, and
a superior labral tear in his left shoulder, for which
he recommended that the plaintiff undergo surgery.
O’Holleran performed the recommended surgery on
June 5, 2009. Almost six months later, after the plaintiff
completed another course of physical therapy, O’Hol-
leran gave him a medical release to return to full work
duties on November 18, 2009.
Thereafter, the plaintiff took a new job with Charm
Sciences, another Massachusetts manufacturer, for
which he mixed commercial grade chemicals. While
working at Charm Sciences on December 30, 2009, the
plaintiff reinjured his left shoulder when lifting a forty
pound box. As a result of this reinjury, the plaintiff
experienced ‘‘difficulty reaching behind his shoulder as
well as . . . overhead.’’ The following week, the plain-
tiff was reexamined by O’Holleran, who gave him
another cortisone injection, placed him on a light duty
work restriction, and recommended that he undergo
an additional six weeks of physical therapy. On March
22, 2010, when the plaintiff was reexamined by O’Hol-
leran after he had completed the recommended course
of physical therapy, he reported that his shoulder had
experienced ‘‘a dramatic improvement . . . .’’ Accord-
ingly, the plaintiff requested that O’Holleran give him
a release to return to full work duty and a clearance
‘‘to do some weight training and lifting.’’ O’Holleran
gave the plaintiff a release to return to full work duty
and instructed him to return ‘‘on an as-needed basis.’’
On June 2, 2011, the plaintiff returned to O’Holleran,
complaining of persistent pain in his left shoulder.
O’Holleran gave the plaintiff another cortisone injection
and instructed him to undergo additional physical ther-
apy. These conservative treatments proved to be unsuc-
cessful, however, and the plaintiff remained unable to
return to work throughout July, 2011. Thereafter, the
plaintiff underwent another MRI scan on August 31,
2011. On September 15, 2011, when O’Holleran
reviewed the new MRI scan with the plaintiff, he opined
that, although the plaintiff had not suffered a new tear
in his left shoulder, there was ‘‘a high degree of [inflam-
mation] within the tissue inside the AC joint.’’ After
discussing several treatment options with O’Holleran,
the plaintiff elected to undergo a second surgery for
shoulder arthroscopy, lysis of adhesions, and debride-
ment,2 which O’Holleran performed on February 28,
2012. Although the second surgery was performed with-
out complication, the plaintiff remained unable to work
for several months thereafter.
In April, 2013, the plaintiff was employed by the
defendant Edson Manufacturing,3 a Connecticut manu-
facturer, as a mechanic and machine operator. As part
of his duties, the plaintiff used a dolly4 to bring barrels
of nails to the company’s rivet-making machines and
to transport finished rivets to other locations in the
factory after they were made. While working on April
15, 2013, the plaintiff prepared to move a barrel of
stainless steel nails weighing approximately 100
pounds. To do so, he first positioned himself behind
the dolly and barrel, then, with his right hand on the
back of the dolly, reached out with his left arm and
placed his left hand on the rim of the barrel. Then, with
his left hand gripping the rim of the barrel, the plaintiff
pulled the barrel of nails toward his chest until he felt
a sudden ‘‘pop’’ in his left shoulder. The plaintiff did
not inform anyone of his injury at the time he sustained
it, nor did he request time off from work after he finished
his shift that day. Rather, he continued to work for the
defendant, without complaint, for the next eleven days,
until he was laid off on April 26, 2013.
Because the layoff was supposed to be temporary, the
plaintiff intended to return to his job with the defendant
when it was over. On May 20, 2013, the defendant noti-
fied the plaintiff, by text message, that he could return
to work. The plaintiff responded by text message that
he would return to work the following Monday. The
defendant’s offer later was retracted, however, due to
an unexpected delay in receiving certain materials
and supplies.
Two days later, on May 22, 2013, thirty-seven days
after the plaintiff suffered his workplace injury, he went
to the emergency room of Lawrence General Hospital
in Lawrence, Massachusetts, complaining of pain in his
left shoulder. Thereafter, the plaintiff was referred back
to O’Holleran, who examined him on May 24, 2013.
During that examination, the plaintiff stated that he had
been experiencing ‘‘significant worsening pain’’ in his
left shoulder since the date of his injury, which had
caused him to be unable to sleep or to perform overhead
activities without pain. Accordingly, O’Holleran ordered
another MRI scan of the plaintiff’s left shoulder and gave
him documentation stating that he would be unable to
return to work until he was reevaluated.
On July 9, 2013, the plaintiff filed a form 30C notice
of his workers’ compensation claim.5 On July 7, 2013,
more than seventy days after the date of his workplace
injury, the plaintiff informed the defendant, for the first
time, that he had suffered a shoulder injury while work-
ing on April 15, 2013. After receiving the plaintiff’s form
30C, the defendant requested, pursuant to General Stat-
utes § 31-294f (a),6 that an independent medical exami-
nation of the plaintiff be conducted in order to assist
it in determining whether to accept or contest the plain-
tiff’s workers’ compensation claim.
Prior to that examination, on June 8, 2013, the plain-
tiff underwent another MRI scan at the request of O’Hol-
leran. On August 8, 2013, the plaintiff met with
O’Holleran to discuss his findings. After reviewing the
MRI scan, O’Holleran opined that the plaintiff had not
aggravated a previous injury to his left shoulder on
April 15, 2013, but, instead, had sustained a new injury—
an anterior glenoid fracture with a bony Bankart lesion7
and a Hill-Sachs lesion.8 O’Holleran then noted, ‘‘I feel
that his fracture fragment is in very good position and
does not need surgery at this time. Given that his origi-
nal injury was in April, I feel that [the] fragment has
essentially healed. He still certainly has the labral tear
and he certainly has pain. . . . I have recommended a
course of physical therapy . . . . Regarding work, he
will be cleared for light duty with no lifting greater
than [ten] pounds.’’ On September 11, 2013, however,
O’Holleran changed that work restriction by ordering
that the plaintiff not return to work until he was reevalu-
ated. He later reaffirmed that total work restriction on
October 23, 2013.
On September 25, 2013, the plaintiff was examined
by Steven E. Selden, an orthopedic surgeon selected
by the defendant as its independent medical examiner.
During that examination, the plaintiff informed Selden
that, on April 15, 2013, ‘‘he was moving a barrel [when
he] felt a pop in his left shoulder . . . [but] he did not
feel any actual pain.’’ After reviewing O’Holleran’s May
24, 2013 notes and the June 8, 2013 MRI scan that
O’Holleran had ordered, Selden noted that the plaintiff
had sustained a prior shoulder injury in 2009, in connec-
tion with which he had undergone a ‘‘posterior capsular
shift and distal clavicle excision.’’ (Emphasis added.)
Selden concurred with O’Holleran that the plaintiff was
then suffering from a Hill-Sachs lesion and a bony Bank-
art lesion in his left shoulder. He did not agree, however,
that this injury had occurred on April 15, 2013. Rather,
he opined that ‘‘[the plaintiff] may have sustained a
strain of his left shoulder as a result of moving a barrel
. . . but he has a significant preexisting condition to
his left shoulder for which he had two surgical proce-
dures. It would be very helpful to have Dr. O’Holleran’s
notes regarding prior treatment for the left shoulder.
Certainly, the [plaintiff’s] Bankart lesion and Hill-Sachs
lesion clearly preexisted April of 2013 based on the
history reviewed. A course of physical therapy at this
time would be appropriate.’’ Selden further opined that
the plaintiff was not totally disabled but, instead, was
capable of light duty work ‘‘with avoidance of lifting
more than [twenty-five] pounds and . . . overhead
reaching and lifting.’’
On December 23, 2013, O’Holleran reexamined the
plaintiff a final time. During that examination, the plain-
tiff maintained that he was still experiencing persistent
pain in his left shoulder, and thus he requested that a
third surgery be performed. In light of the plaintiff’s
repeated history of cortisone injections, use of anti-
inflammatories, and physical therapy, none of which
had yet proved to be successful, O’Holleran recom-
mended that a third surgery be performed on the plain-
tiff’s left shoulder.
Thereafter, the commissioner directed the plaintiff,
pursuant to § 31-294f (a), to submit to another medical
examination by an independent medical examiner of
the commissioner’s own choosing, Dr. Peter R. Barnett.
After performing that examination on April 14, 2014,
Barnett noted: ‘‘Currently, the [plaintiff] feels that his
left shoulder complaints have worsened. . . . The
[plaintiff] . . . complains of numbness and tingling cir-
cumferentially throughout the entire left upper extrem-
ity, intermittently present both during the day and at
night since the injury.’’ After reviewing the plaintiff’s
medical records, Barnett opined: ‘‘It is my impression
based on information currently available that [the plain-
tiff’s] bony Bankart lesion and Hill-Sachs lesion [are]
attributable to the alleged work-related incident . . .
on April 15, 2013.’’ Barnett further opined that, although
the plaintiff had not yet reached maximum medical
improvement, he was capable of limited work duty with
restrictions against lifting or reaching overhead, repeti-
tive use of the left arm, and lifting more than fifteen
pounds.
On July 14, 2014, the commissioner held a formal
hearing on the plaintiff’s claims (1) for total incapacity
benefits from June 24 to August 8, 2013; (2) for tempo-
rary partial benefits from August 9 to October 23, 2013;
and (3) for total incapacity benefits from October 24,
2013 to July 14, 2014. At that hearing, the plaintiff testi-
fied and produced documentary evidence, including
MRI scans, the medical records of O’Holleran, Selden
and Barnett, and transcripts of O’Holleran’s and Sel-
den’s depositions. In response, the defendant produced,
inter alia, a July 14, 2014 addendum to Selden’s medical
report, wherein Selden stated that, although he had
reviewed additional medical records pertaining to the
plaintiff, he still believed that the plaintiff’s April 15,
2013 injury did not cause his glenoid fracture and
lesions. The defendant also submitted copies of certain
text messages between the plaintiff and his manager,
several documents regarding the plaintiff’s two prior
workers’ compensation claims for injuries to his left
shoulder, and several statements from the plaintiff’s
former coworkers describing past conversations with
the plaintiff, in which he had told them that he routinely
did pushups in the morning before going to work.
On January 5, 2015, the commissioner issued a writ-
ten decision, in which he found, inter alia, that (1) the
plaintiff had not informed either his employer or his
coworkers of his workplace injury, or reported that he
had any difficulty performing his job duties after the
injury; (2) there was ‘‘[c]onflicting testimony . . . as
to the [plaintiff’s] weightlifting activities’’ around the
date of his injury; (3) Selden disagreed with the mecha-
nism of injury, opining that the April 15, 2013 incident
had ‘‘caused nothing more than a temporary, self-lim-
ited strain of [the plaintiff’s] left shoulder’’; and (4) as
to the extent of the plaintiff’s disability caused by his
April 15, 2013 injury and resulting need for further medi-
cal treatment, Selden’s opinions were more persuasive
than those of O’Holleran and Barnett. On the basis of
those findings, the commissioner concluded that the
plaintiff had sustained a left shoulder injury in the
course of his employment, for which he was entitled
to receive ‘‘temporary total benefits for the period of
June 24, 2013 through August 8, 2013.’’ The commis-
sioner disagreed, however, that the April 15, 2013 inci-
dent had caused either the plaintiff’s anterior glenoid
fracture or his accompanying lesions. Instead, the com-
missioner adopted Selden’s opinion that on April 15,
2013, the plaintiff had suffered a shoulder sprain, and
thus that ‘‘any [current] restrictions or limitations on
his ability to work were unrelated to the April 15, 2013
injury.’’ On those grounds, the commissioner denied
the plaintiff’s claims for temporary partial benefits for
the period from August 9 to October 23, 2013, and for
temporary total benefits for the period from October
24, 2013 to July 14, 2014.
On February 18, 2015, the plaintiff appealed from the
commissioner’s decision to the board, claiming that the
commissioner had ‘‘erred in finding . . . Selden to be
more persuasive than . . . O’Holleran and Barnett on
the issues of extent of disability and medical treatment.’’
In his accompanying brief, the plaintiff argued that Sel-
den had formed his opinion as to causation and extent of
disability without first reviewing the plaintiff’s medical
records concerning the treatment of his prior shoulder
injury from 2009 through 2012. As a result, he argued,
Selden was unaware that the plaintiff’s prior injury was
to the posterior labrum, whereas the April 15, 2013
injury here at issue was to his anterior labrum. The
plaintiff thus argued that ‘‘[b]ecause . . . Selden did
not have sufficient subordinate facts to render an opin-
ion [to a reasonable degree of medical probability], the
commissioner erred in relying on his testimony.’’ Last,
the plaintiff claimed that the commissioner did not ade-
quately articulate why he had disregarded the opinion
of Barnett, his own medical examiner, in making his
findings and issuing his award in this case. On those
grounds, the plaintiff requested that the board reverse
the commissioner’s decision and find that the plaintiff
was entitled to benefits ‘‘from August 8, 2013, to the
present and continuing until a form 36 is approved.’’
On June 26, 2015, the board held a hearing on the
plaintiff’s claims. On October 6, 2015, it issued a written
decision affirming the commissioner’s decision. In so
doing, the board found, inter alia, that (1) Selden had
offered a reasonable basis for his medical opinions as
to causation; (2) the commissioner’s findings were sup-
ported by adequate subordinate facts; (3) the commis-
sioner correctly applied the law to the facts found; and
(4) the commissioner’s written decision ‘‘complie[d]
with the standard we have delineated for a decision
which does not rely on the opinion of the commission-
er’s examiner.’’ Thereafter, the plaintiff filed the present
appeal. Additional facts will be set forth as necessary.
I
On appeal, the plaintiff first claims that the board
erred in affirming the commissioner’s decision because
the commissioner’s findings regarding the cause and
extent of the plaintiff’s disability were not supported
by sufficient subordinate facts. In support of his argu-
ment, the plaintiff asserts that Selden had formed his
opinion as to the cause and extent of the plaintiff’s
disability before he had reviewed the plaintiff’s medical
records regarding the prior injuries to and correspond-
ing treatments for his left shoulder. The plaintiff argues
that, without first acquainting himself with the plain-
tiff’s entire medical history, Selden’s opinion that the
plaintiff’s fracture and lesions preexisted the April 15,
2013 injury was the product of speculation and conjec-
ture, and thus his opinion could not be stated to a
reasonable degree of medical probability. Therefore,
the plaintiff argues, the commissioner’s decision, which
relied heavily on Selden’s opinion, was based on specu-
lation and conjecture. In the alternative, the plaintiff
argues that because none of the medical examiners in
this case testified before the commissioner at the July
14, 2014 formal hearing, this court is not obligated to
defer to the commissioner’s credibility determinations
and, instead, should conclude that the commissioner
erred by not adopting the more persuasive opinions of
O’Holleran and Barnett. See Bode v. Connecticut Mason
Contractors, The Learning Corridor, 130 Conn. App.
672, 25 A.3d 687, cert. denied, 302 Conn. 942, 29 A.3d
467 (2011).
The defendant disagrees, asserting that the board
deferred appropriately to the commissioner’s factual
findings and credibility determinations. In support of
its argument, the defendant argues that causation is a
question of fact and, if presented with conflicting medi-
cal testimony, the commissioner has the sole discretion
to determine whose opinions to credit and what weight
to give to such opinions. Therefore, the defendant
argues, the board correctly held that it could not reject
the commissioner’s finding that Selden’s opinion was
more persuasive than those of O’Holleran and Barnett.
The defendant further argues that the board correctly
held that Selden offered a reasonable basis for his opin-
ions on causation and that, unlike the medical expert
in DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 294
Conn. 132, 982 A.2d 157 (2009)—a case upon which the
plaintiff relies for his argument that Selden’s opinion
was the product of speculation and conjecture—Selden
physically examined the plaintiff and, on two separate
occasions, reviewed additional medical information
prior to submitting the July 14, 2014 addendum to his
report, wherein he affirmed his original opinion that
the plaintiff suffered a shoulder sprain on April 15, 2013.
The defendant thus argues that the board did not abuse
its discretion in affirming the commissioner’s decision.
We agree with the defendant.
The following additional facts, as presented to the
commissioner, are relevant to this claim. As discussed
in the preceding paragraphs, the commissioner was pre-
sented with the plaintiff’s live testimony and documen-
tary evidence of the plaintiff’s medical history and
examinations. In his testimony, the plaintiff was asked,
and he answered, several questions as to whether he
exercised or lifted weights around the date of his injury.
The plaintiff denied that he had ever engaged in weigh-
tlifting, exercising at a gym, or even exercising at home.
Moreover, the plaintiff denied that he had ever asked
O’Holleran to provide him with a medical release so
that he could resume weightlifting. The defendant chal-
lenged this testimony by submitting statements from
three of the plaintiff’s former coworkers, describing
separate conversations with the plaintiff, in which he
had told them that he did pushups and sit-ups every
day before going to work. In one such conversation, a
coworker recalled that the plaintiff had bragged about
‘‘how easy [his job] was because ‘he was used to doing
200 pushups and 200-300 sit-ups among other exercises
every morning before work’ . . . .’’
The documentary evidence presented at the formal
hearing included, inter alia, O’Holleran’s February 27,
2014 deposition. At the deposition, O’Holleran testified
that he had reviewed his notes from the years 2009 to
2013, as well as MRI scans and X-rays he had ordered
of the plaintiff’s shoulder. On the basis of those records,
O’Holleran opined, inter alia, that the incident on April
15, 2013, had caused the glenoid fracture, the bony
Bankart lesion and the Hill-Sachs lesion in the plaintiff’s
left shoulder; this injury was unrelated to the plaintiff’s
prior shoulder surgeries in 2009 and 2012; the plaintiff
had not yet reached maximum medical improvement
following his April 15, 2013 injury; and, in light of the
fact that the plaintiff had exhausted all conservative
treatment options for his shoulder, surgery would be
the next logical step, after which the plaintiff would
need approximately nine months to fully recover.
In explaining the basis for his opinions, O’Holleran
stated that the plaintiff’s present fracture and lesions
were in the anterior portion of the labrum, and thus
could not have been an aggravation of the plaintiff’s
prior injury, which was to his posterior labrum; the
plaintiff’s report of feeling a ‘‘pop’’ at the time he was
injured was consistent with experiencing a glenoid frac-
ture and a labral tear; and, although a recent MRI scan
showed that the fracture had healed, it was likely that
the plaintiff’s labrum was still torn, and that the tear
was causing the plaintiff’s pain. Last, O’Holleran noted
the presence of bone marrow edema9 in the plaintiff’s
shoulder, which was consistent with a recent injury to
his shoulder joint.
O’Holleran’s testimony, however, was not unquali-
fied. Thus, as to the mechanism of the plaintiff’s injury,
O’Holleran conceded: ‘‘I have zero opinion as to
whether or not he truly injured his shoulder as he said
he did at work. . . . I wasn’t there . . . . I can only
go by what the patient tells me in the office.’’ Moreover,
after he was asked to assume that the plaintiff had
operated the dolly in a conventional manner, O’Holleran
conceded that it would have been uncommon for such
activity to cause this type of injury. O’Holleran further
conceded that a glenoid fracture that causes a bony
Bankart lesion and Hill-Sachs lesion is a painful injury,
and that it was ‘‘unusual’’ for the plaintiff to have waited
five weeks before seeking medical treatment. Regarding
the current status of the plaintiff’s injury, O’Holleran
agreed that the recent scans showed that the fracture
had healed, but stated both that he would be unable to
determine the extent of the injury until he performed
an incision on the shoulder joint, and that he lacked
objective evidence to explain the plaintiff’s current neu-
rological complaints. As to the benefits of undergoing
a third surgery, O’Holleran stated: ‘‘I think, given [that]
he has not improved in [ten] months, and . . . assum-
ing that his condition hasn’t changed, I think [that] it’s
unlikely he’s going to get much better.’’ Last, when
asked about the March 22, 2010 note regarding the plain-
tiff’s desire to return to weightlifting and exercising,
O’Holleran stated that, although he had no independent
recollection of the plaintiff’s exercise habits, he did not
believe that the note was a mistake.
Selden’s deposition occurred on December 2, 2013.
At his deposition, Selden testified that, prior to forming
his opinions, he had physically examined the plaintiff,
performed a neurological assessment of him, and
reviewed O’Holleran’s May 24, 2013 notes as well as
the June 8, 2013 MRI scan that O’Holleran had ordered.
Selden further testified that, after his September 25,
2013 examination of the plaintiff but before he gave his
deposition, he had received and reviewed additional
medical records for the plaintiff.10 When questioned as
to the results of the June 8, 2013 MRI scan, Selden
acknowledged that it showed a glenoid fracture as well
as a bony Bankart lesion and a Hill-Sachs lesion. He
maintained, however, that this injury had not occurred
on April 15, 2013. Selden explained that his opinion was
based on two factors: (1) the mechanism of injury, as
described by the plaintiff, was inconsistent with causing
a glenoid fracture; and (2) the plaintiff’s claim that he
did not feel any pain when he sustained the injury was
inconsistent with sustaining a glenoid fracture. As to
the mechanism of injury, Selden testified that ‘‘lifting
a barrel, whether it’s manually . . . or using . . .
some type of dolly, is inconsistent with fracturing your
glenoid. . . . It’s the wrong mechanism to cause a frac-
ture.’’ As to the amount of pain the plaintiff reportedly
felt at the time of his injury, moreover, Selden testified,
‘‘I have not seen anybody with a glenoid fracture that
didn’t have significant pain in their shoulder, as with
any fracture around the shoulder. That’s a painful injury.
I’ve personally not [seen] any patients with fractures
such as that, and I’ve seen lots over the years, who
have not had significant pain.’’
On those grounds, Selden opined, inter alia, that the
plaintiff likely suffered a shoulder strain on April 15,
2013; given the plaintiff’s history of shoulder injuries,
a sprain of this nature would have healed within approx-
imately six to eight weeks; notwithstanding such a
shoulder sprain, the plaintiff would have retained a light
duty work capacity, and should have reached maximum
medical improvement within six months of the date of
the injury; there was no discernible reason for addi-
tional surgery on the shoulder; and he did not believe
that the plaintiff’s current complaints of persistent pain
and numbness were connected to the April 15, 2013
work injury because the plaintiff did not complain of,
nor did Selden observe any evidence that he was experi-
encing, any numbness or nerve damage when he per-
formed his neurological examination of the plaintiff.
Selden’s testimony, like O’Holleran’s, was not unqual-
ified. When asked his opinion as to what had occurred
when the plaintiff felt the ‘‘pop’’ in his shoulder, Selden
opined that the plaintiff had either subluxed11 his shoul-
der or felt the breaking of adhesions or residual scar
tissue from his prior surgery. Thereafter, Selden agreed
that the subluxation of the shoulder joint can cause a
glenoid fracture resulting in Bankart lesions or Hill-
Sachs lesions. He maintained, however, that the mecha-
nism of injury and the amount of pain experienced
on April 15, 2013, were inconsistent with sustaining a
glenoid fracture.
In addition to these deposition transcripts, the plain-
tiff submitted the April 14, 2014 written report of Bar-
nett, the commissioner’s medical examiner. In that
report, Barnett noted that he had reviewed O’Holleran’s
notes for the period from 2009 to 2013, as well as several
X-rays and MRI scans performed between 2011 and
2013. He then noted that the plaintiff had stated that ‘‘he
was pushing with his left arm when he felt a popping
sensation and mild pain.’’ (Emphasis added.) Barnett
subsequently diagnosed the plaintiff as suffering from
an anterior-inferior bony Bankart lesion and a poste-
rior-superior bony Hill-Sachs lesion, further noting the
presence of bone marrow edema in the plaintiff’s shoul-
der. On the basis of those findings, Barnett opined:
‘‘It is my impression based on information currently
available that [the plaintiff’s] bony Bankart lesion and
Hill-Sachs lesion is attributable to the alleged work-
related incident . . . on April 15, 2013. There is no
indication that either of these problems was present at
the time of his prior surgical procedures or prior care for
the shoulder.’’ He further noted that, ‘‘[a]t this juncture
surgical intervention on the left shoulder would not be
recommended. . . . [I]t is recommended that the
[plaintiff] undergo a neurologic assessment . . . to
determine the cause and origin of the [plaintiff’s] non-
specific neurologic complaints . . . .’’
Last, on the day of the formal hearing, the defendant
submitted an addendum to Selden’s report, dated July
14, 2014, wherein Selden stated, ‘‘I have reviewed addi-
tional medical records provided regarding [the plain-
tiff].12 It remains my opinion that [the plaintiff] sustained
a strain of his left shoulder as a result of moving a
barrel on [April 15, 2013]. . . . It is my opinion that
the incident of [April 15, 2013] caused nothing more
than a temporary, self-limited strain of his left shoulder
. . . [and] that any limitations on his ability to work at
this time are unrelated to the incident of [April 15, 2013].
(Footnote added.)
In summarizing the commissioner’s findings, the
board recalled that the commissioner had ‘‘noted that
the medical evidence in this claim was disputed, and
there was inconsistency between the [plaintiff’s] narra-
tive as to his exercise regimen and the reports of his
treating physician.’’ Thereafter, the board held that, in
light of Selden’s examination and conclusions, as con-
firmed by his July 14, 2014 addendum, ‘‘the opinions
that [Selden] provided in this case were . . . compe-
tent evidence that the trial commissioner could reason-
ably rely upon. To the extent the initial opinions
rendered by [Selden] had deficiencies, we believe that
they were sufficiently clarified by the addendum sub-
mitted . . . to constitute a reliable expert opinion.’’
Thus, the board held that the commissioner’s conclu-
sion ‘‘[was] consistent with a medical opinion he found
persuasive and reliable.’’ With these additional facts in
mind, we turn to the merits of the plaintiff’s claims.
A
We first address the plaintiff’s argument that Selden’s
opinion was not competent medical evidence supported
by sufficient subordinate facts, and thus that the com-
missioner’s decision, which relied heavily on that opin-
ion, was based on speculation and conjecture. The
gravamen of the plaintiff’s argument is that Selden was
unaware, when formulating his opinions, that the plain-
tiff’s prior injuries were to the posterior labrum—
whereas his current injury was to the anterior labrum—
and that his written opinion was directly contradicted
by his subsequent deposition testimony. We are unper-
suaded.
‘‘[W]e first set forth our standard of review for work-
ers’ compensation appeals. The commissioner is the
sole trier of fact and [t]he conclusions drawn by [the
commissioner] from the facts found must stand unless
they result from an incorrect application of the law to
the subordinate facts or from an inference illegally or
unreasonably drawn from them. . . . The review
[board’s] hearing of an appeal from the commissioner
is not a de novo hearing of the facts. . . . [I]t is [obli-
gated] to hear the appeal on the record and not retry
the facts. . . . On appeal, the board must determine
whether there is any evidence13 in the record to support
the commissioner’s findings and award. . . . Our
scope of review of [the] actions of the [board] is [simi-
larly] . . . limited. . . . [However] [t]he decision of
the [board] must be correct in law, and it must not
include facts found without evidence or fail to include
material facts which are admitted or undisputed.’’
(Emphasis added; footnote added; internal quotation
marks omitted.) Mahoney v. Bill Mann Tree Service,
Inc., 67 Conn. App. 134, 136, 787 A.2d 61 (2001).
‘‘A commissioner’s conclusion regarding causation
is conclusive, provided it is supported by competent
evidence and is otherwise consistent with the law.’’
(Citation omitted.) Dengler v. Special Attention Health
Services, Inc., 62 Conn. App. 440, 451, 774 A.2d 992(2001). Moreover, ‘‘[i]t matters not that the basic facts
from which the [commissioner] draws this inference
are . . . controverted. . . . It is likewise immaterial
that the facts permit the drawing of diverse inferences.
The [commissioner] alone is charged with the duty of
initially selecting the inference which seems most rea-
sonable and [the commissioner’s] choice, if otherwise
sustainable, may not be disturbed by a reviewing court.’’
(Internal quotation marks omitted.) Gartrell v. Dept.
of Correction, 259 Conn. 29, 36, 787 A.2d 541 (2002).
‘‘[T]here must [however] be subordinate facts from
which the conclusion that there is a causal connection
between the employment and the injury can be drawn.
. . . [Thus, the] right of a claimant to compensation
must be based [on] more than speculation and conjec-
ture.’’ (Internal quotation marks omitted.) DiNuzzo v.
Dan Perkins Chevrolet GEO, Inc., supra, 294 Conn. 143.
Accordingly, ‘‘[a]lthough . . . the board is prohibited
from retrying the case or substituting its inferences for
those drawn by the commissioner, the board certainly
[is] free to examine the record to determine whether
competent evidence supported the commissioner’s
findings, inferences drawn from such findings and con-
clusions.’’ Dengler v. Special Attention Health Services,
Inc., supra, 450.
In the present case, the plaintiff argues that the com-
missioner’s findings were not supported by competent
medical evidence because, at the time he formed his
opinions, Selden was unaware that the plaintiff’s prior
injuries involved the plaintiff’s anterior labrum, not the
posterior labrum. The plaintiff thus argues, citing
DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., supra, 294
Conn. 132, that, without knowing the entirety of the
plaintiff’s prior medical history, Selden’s opinion on
causation and extent of disability amounted to mere
speculation and conjecture, and thus ‘‘there were insuf-
ficient subordinate facts in the record to support the
commissioner’s finding’’; id., 143; which was predicated
on Selden’s expert testimony.
After carefully reviewing the record in this case, we
conclude that the board did not err in determining that
Selden offered a reasonable basis for his opinion, and
thus that the commissioner’s decision, which relied
upon that opinion, was supported by sufficient subordi-
nate facts to require that it be affirmed. First, in his
September 25, 2013 report, Selden specifically noted
that he had reviewed the plaintiff’s past medical history,
which revealed that, in 2009, the plaintiff had injured
his shoulder and ‘‘underwent a posterior capsular shift
and distal clavicle excision. He did not do well and had
a second surgery in June of 2012. He underwent lysis
of adhesions.’’ (Emphasis added.) Thereafter, during
his December 2, 2013 deposition, Selden agreed with
the statement by the defendant’s counsel that he
reviewed ‘‘a couple of additional medical records from
the past which [he] did not have’’ at the time of his
examination. Last, in his July 14, 2014 addendum, Sel-
den again reported that he had reviewed additional
medical records, but that his opinion remained
unchanged: the April 15, 2013 incident had caused noth-
ing more than a shoulder strain, and any current limita-
tions on the plaintiff’s ability to work were unrelated
to that incident. Looking at ‘‘the entire substance of
the expert’s testimony’’; O’Reilly v. General Dynamics
Corp., 52 Conn. App. 813, 817, 728 A.2d 527 (1999); it
is apparent that Selden was aware that the plaintiff’s
2009 injury was to the posterior labrum and that, after
personally examining the plaintiff, reviewing his past
medical history, and twice reviewing additional medical
reports, his opinion remained constant.
For that reason, we conclude that the board correctly
determined that Selden’s opinions were unlike those of
the claimant’s medical examiner in DiNuzzo v. Dan
Perkins Chevrolet Geo, Inc., supra, 294 Conn. 132. In
DiNuzzo, the decedent’s spouse ‘‘submitted a claim for
dependent widow’s benefits pursuant to . . . [General
Statutes] § 31-306.’’ (Internal quotation marks omitted.)
Id., 134. In support of her claim, the claimant submitted
a medical report prepared by the decedent’s physician,
in which the doctor ‘‘stated that the cause of [the dece-
dent’s] death was heart disease, secondary to athero-
sclerotic heart disease . . . brought about by the
curtailment of his physical activities . . . [and that the
decedent’s prior] compensable injury and its treatment
substantially contributed to his death . . . because
they severely limited his ability to maintain his physical
fitness and aerobic conditioning.’’ (Internal quotation
marks omitted.) Id., 135. Thereafter, the commissioner
in DiNuzzo found ‘‘that there was a relationship
between the compensable injury and the decedent’s
death . . . [and, on that basis,] concluded that the
plaintiff was entitled to benefits pursuant to § 31-306.’’
(Internal quotation marks omitted.) Id., 136.
On appeal in DiNuzzo, our Supreme Court affirmed
the judgment of this court, which reversed the board’s
affirmance of the commissioner’s decision. In so doing,
the DiNuzzo court noted that the medical examiner,
upon whose opinion the commissioner had relied, had
made the following concessions of fact which under-
mined his opinion: (1) the decedent had not been diag-
nosed with atherosclerotic heart disease; (2) the
medical examiner was unaware that ‘‘the decedent had
been hospitalized approximately one month before his
death for certain side effects of Interferon’’; id., 145;
(3) the symptoms exhibited by the decedent shortly
before his death ‘‘could have been the result of his use
of Interferon’’; id.; and (4) because he did examine the
decedent’s body postmortem, ‘‘it would be impossible
to know whether the heart attack could have been pre-
vented if the decedent had been able to exercise more
because some heart attacks are caused by congenital
heart defects that are not amenable to improvement
through exercise.’’ Id., 146. The court then noted that,
aside from this unsupported medical opinion, ‘‘the
plaintiff produced no evidence linking the decedent’s
death to a heart attack.’’ Id., 144. Accordingly, the court
held that that medical opinion amounted to no more
than speculation and conjecture, and thus ‘‘the causal
link between his compensable injury and his alleged
manner of death simply [became] too attenuated to
support a reasonable inference that the two events were
connected.’’ Id., 148.
Here, unlike the medical examiner in DiNuzzo, Sel-
den physically examined and performed a neurological
assessment of the plaintiff, reviewed O’Holleran’s May,
2013 medical notes, the June 8, 2013 MRI scan, which
O’Holleran had ordered, and twice reviewed additional
medical records concerning the plaintiff’s prior shoul-
der injuries. In light of these facts, the commissioner
in this case had far more evidence on the record before
him to substantiate Selden’s opinion as to the nature
and extent of the plaintiff’s injury than the medical
examiner whose opinion was rejected as speculative
and conjectural in DiNuzzo. See id., 145–48. Because
Selden provided a reasonable basis for his opinion, that
opinion was competent medical evidence supported by
sufficient underlying facts to justify the commissioner’s
reliance upon it in reaching his decision in this case.
Last, we are not persuaded by the plaintiff’s argument
that Selden’s written report was so contradicted by
his deposition testimony, or that any inconsistencies
between the report and the deposition were so substan-
tial, as to make it inappropriate for the commissioner
to rely on the report in making his findings in this
case. Although the plaintiff correctly notes that Selden
testified that he believed that the plaintiff may have
subluxed his shoulder on April 15, 2013, and that a
shoulder subluxation can result in a glenoid fracture,
there are two fundamental flaws in the plaintiff’s argu-
ment. First, Selden testified that the ‘‘pop’’ in the plain-
tiff’s shoulder could have been either a subluxation or
a tearing of preexisting adhesions and scar tissue, either
of which could have caused the plaintiff’s shoulder
strain without causing the glenoid fracture. Second, the
plaintiff fails to acknowledge that, even if he did sublux
his shoulder on April 15, 2013, and a subluxation can
cause a glenoid fracture, those possibilities do not com-
pel a finding that the particular subluxation, if any, that
occurred on April 15, 2013, is what caused the glenoid
fracture. Instead, both Selden and the commissioner
reasonably could have concluded that the plaintiff, who
claimed to have routinely done 200 pushups per day,
sustained a second subluxation that caused the glenoid
fracture after the date of his workplace injury on April
15, 2013, but before he went to the hospital on May 22,
2013. We thus cannot find that Selden’s written opinion
was so squarely contradicted by his deposition testi-
mony as to render his opinion speculative or con-
jectural.
‘‘Once the commissioner makes a factual finding, [we
are] bound by that finding if there is evidence in the
record to support it. . . . Similarly, the conclusions
drawn by the commissioner from the facts found must
stand unless they result from an incorrect application
of the law to the subordinate facts or from an inference
illegally or unreasonably drawn from them. . . . It [is]
within the commissioner’s discretion to credit all, part
or none of the . . . [expert] testimony. That determina-
tion cannot be overruled by the board unless it could not
find any evidence to support the conclusion.’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.) O’Reilly v. General Dynamics Corp., supra,
52 Conn. App. 818–19. In light of the foregoing analysis,
we agree with the board that Selden’s opinion was sup-
ported by sufficient subordinate facts to constitute com-
petent medical evidence upon which the commissioner
properly could rely in making his findings in this case.
We thus conclude that the board correctly determined
that the commissioner’s findings were supported by
sufficient underlying facts to uphold them, and that any
inferences drawn from such facts were reasonable and
legally permissible. See, e.g., Blakeslee v. Platt Bros. &
Co., 279 Conn. 239, 243, 902 A.2d 620 (2006).
B
Notwithstanding our conclusion that the commis-
sioner’s findings were supported by sufficient underly-
ing facts, the plaintiff argues, in the alternative, under
Bode v. Connecticut Mason Contractors, The Learning
Corridor, supra, 130 Conn. App. 672, that this court
should depart from the degree of deference usually
afforded to the commissioner’s credibility determina-
tions and conclude that the commissioner erred in not
adopting the opinions of O’Holleran and Barnett. This
is so, the plaintiff argues, because none of the medical
examiners gave live testimony before the commissioner
at the July, 2014 formal hearing; rather, each examiner
submitted a written report concerning his own medical
evaluation of the plaintiff. The plaintiff argues that,
under these circumstances, the commissioner’s credi-
bility determinations were not influenced by the live
testimony of those witnesses, and thus this court is
equally capable of determining the appropriate weight
to afford the opinions of Selden, O’Holleran and Barnett.
We disagree and conclude that the defendant’s reliance
on Bode is misplaced.
In Bode, the claimant sought temporary total disabil-
ity benefits for fractures to his spine and shoulder that
he sustained in 2002, after falling thirty feet from scaf-
folding. Id., 674. Although the claimant submitted a
number of medical records in support of his claim,
‘‘[n]one of the physicians opined that the [claimant]
was totally disabled or unable to work on or after April
26, 2005.’’ Id., 676. In addition to these reports, the
claimant submitted four vocational evaluations.
Although the first two evaluations, performed in Octo-
ber, 2003, and January, 2004, had concluded that the
claimant was ‘‘ ‘presently employable,’ ’’ the last two
evaluations, which were performed in August, 2004, and
July, 2008, had concluded that ‘‘due to his worsening
condition the [claimant] was completely unemploy-
able.’’ Id., 677. In January, 2009, the commissioner dis-
missed the claimant’s request for disability benefits. Id.,
678. Thereafter, the board affirmed the commissioner’s
finding, concluding, inter alia, that ‘‘the [claimant] failed
to meet his burden of proving eligibility for temporary
total disability benefits because . . . he did not intro-
duce one medical report in which a physician opined
that [he] was totally disabled . . . . [Thus] because
this board is not empowered to overturn a trier’s eviden-
tiary determinations unless they lack foundation in the
record . . . the trial commissioner’s decision . . .
must stand.’’ (Internal quotation marks omitted.) Id.On appeal in Bode, the claimant argued that the board
had improperly affirmed the commissioner’s decision
because, inter alia, the commissioner ‘‘arbitrarily disre-
garded . . . the uncontroverted vocational expert
opinions . . . .’’ Id., 679. This court agreed and
reversed the decision of the board. Id. In so doing, the
court in Bode acknowledged that the claimant had not
introduced a single medical report establishing his total
disability. It held, however, that ‘‘[t]he commissioner’s
inquiry . . . as to whether the plaintiff was realistically
employable should not have ended with his review . . .
of the plaintiff’s physical capabilities. Under the facts
of this case, the commissioner’s decision necessarily
involved his consideration of the . . . four vocational
reports’’ as part of his decision as to whether the claim-
ant proved his entitlement to temporary total disability
benefits. Id., 681–82.
After reviewing the evidence presented to the com-
missioner, the court in Bode noted that none of the
vocational experts had testified before the commis-
sioner and that, of the four vocational reports, only
the February, 2004 report unequivocally stated that the
plaintiff presently was employable. Id., 682. Further,
the court in Bode noted that the November, 2003 and
the July, 2008 vocational reports had been authored by
the same evaluator, who had changed his opinion in
his 2008 report by finding that the claimant, at that time,
was ‘‘ ‘totally unemployable.’ ’’ Id., 684. Last, the court
noted that the commissioner’s decision discussed only
the vocational reports suggesting that the plaintiff was
employable, but made no finding as to the reliability of
the August, 2004 or July, 2008 reports that had stated
that the plaintiff was unemployable. Id., 684.
In reversing the decision of the board, the court in
Bode ‘‘declined to afford deference to the commission-
er’s credibility determinations when such determina-
tions were based solely on documentary evidence,
noting that ‘no testimony regarding any of the underly-
ing assertions was taken. All of the facts . . . were
reflected in the medical reports from the physicians
. . . . Thus, the deference [that] we normally would
give to the commissioner on issues of credibility is not
warranted in the present case, because we are as able
as he was to gauge the reliability of those documents.’ ’’
Id., 685, quoting Pietraroia v. Northeast Utilities, 254
Conn. 60, 75, 756 A.2d 845 (2000).
In the present case, the plaintiff argues, pursuant to
Bode, that this court should decline to give deference to
the commissioner’s credibility determinations because
here, as in Bode, none of the medical examiners testified
before the commissioner, and thus this court is assert-
edly no less capable than the commissioner of deciding
what weight to give to those reports. We disagree. Our
conclusion rests on the fact that the commissioner’s
credibility determinations and findings in the present
case were clearly influenced by the plaintiff’s live testi-
mony that he never engaged in weightlifting or other
forms of physical exercise. As discussed in the preced-
ing paragraphs, the plaintiff was questioned as to
whether he had ever lifted weights, requested a medical
release from O’Holleran to resume weightlifting, or had
conversations at work about doing pushups and sit-
ups every day before going to work. The plaintiff flatly
denied these allegations. His testimony was directly
contradicted, however, both by O’Holleran’s medical
notes and by the statements of his former coworkers.
In his decision, the commissioner expressly found that
there was ‘‘[c]onflicting testimony . . . between the
[plaintiff] and [O’Holleran] as to the [plaintiff’s] weigh-
tlifting activities and performing pushups’’; that Selden
‘‘disagreed with the [plaintiff’s] mechanism of the
injury’’; and that ‘‘the opinions and conclusions of [Sel-
den are] more persuasive in part than those of . . .
O’Holleran and Barnett on the issues of extent of disabil-
ity and need for further medical treatment.’’
Against this background, we conclude that here,
unlike in Bode, the commissioner was presented with
‘‘ ‘[live] testimony regarding . . . the [claimant’s]
underlying assertions’ ’’; Bode v. Connecticut Mason
Contractors, The Learning Corridor, supra, 130 Conn.
App. 685; not just written reports from nontestifying
experts, upon which to make his findings and conclu-
sions. It is well settled that ‘‘[the] authority to find the
facts entitles the commissioner to determine the weight
of the evidence presented and the credibility of the
testimony offered by lay and expert witnesses.’’ (Inter-
nal quotation marks omitted.) Ryker v. Bethany, 97
Conn. App. 304, 314, 904 A.2d 1227, cert. denied, 280
Conn. 932, 909 A.2d 958 (2006). Moreover, ‘‘[e]ven if
the medical evidence . . . is not refuted, the [commis-
sioner] can still dismiss the claim if [he] does not find
the injured worker to be credible.’’ 3 A. Sevarino, Con-
necticut Workers’ Compensation After Reforms (J. Pas-
saretti, Jr., ed., 6th Ed. 2014) § 6.02.3, p. 760. Under the
circumstances of this case, we see no compelling reason
to give less deference to the commissioner’s findings
than we usually give to such findings in similar cases.14
II
The plaintiff’s final claim is that the board erred in
not remanding the case to the commissioner with
instructions that the commissioner articulate why he
disregarded the opinion of Barnett, the medical exam-
iner he chose to examine the plaintiff. In support of this
claim, the plaintiff argues that, although a commissioner
may ‘‘[choose] not to adopt the diagnosis of the physi-
cian performing [the commissioner’s] examination,’’ the
commissioner ‘‘should articulate the reasons behind
his or her decision to disregard the examiner’s report’’
because it ‘‘has long been the expectation within work-
ers’ compensation law . . . that the [commissioner’s]
examiner’s opinion will provide strong guidance to the
commissioner’s ultimate decision.’’ (Internal quotation
marks omitted.) The plaintiff asserts that the commis-
sioner’s decision in this case ‘‘summarily states the opin-
ions and conclusions of [Selden]’’ without including
‘‘any explanation whatsoever for this departure,’’ and
thus the board erred in not remanding this case to the
commissioner for further articulation. We disagree.
The following facts are pertinent to this claim. In his
decision, the commissioner found, inter alia, that (1)
Selden ‘‘opined in pertinent part that the [plaintiff] may
have sustained a strain to his left shoulder’’; (2) ‘‘Dr.
Barnett opined, in relevant part, causally relating the
present injury to the April 15, 2013 work-related inci-
dent, did not recommend surgical intervention . . .
and recommended the [plaintiff] undergo a neurologic
assessment’’; and that (3) ‘‘the opinions and conclusions
of [Selden are] more persuasive in part than those of
. . . O’Holleran and Barnett on the issues of extent of
disability and need for further medical treatment.’’ On
those grounds, the commissioner agreed with Selden
that the plaintiff’s April 15, 2013 injury ‘‘was self-limiting
in nature . . . any restrictions or limitations on his
ability to work were unrelated to the April 15, 2013
injury . . . [and that] no further medical treatment is
required as it relates to the April 15, 2013 injury.’’
In affirming that decision, the board held, in part,
that it ‘‘reviewed the finding [and] award and [identified]
no legal error.’’ The board further held that ‘‘the text
of the finding [and] award complies with the standard
we have delineated for a decision which does not rely
on the opinion of the commissioner’s examiner.’’ After
reviewing the contents of the commissioner’s decision,
the board concluded that the reasoning for the commis-
sioner’s departure from Barnett’s medical opinion ‘‘is
clearly ascertainable in this opinion.’’
When reviewing the decision of the board, ‘‘[t]he role
of this court is to determine whether the . . . [board’s]
decision results from an incorrect application of the law
to the subordinate facts or from an inference illegally or
unreasonably drawn from them.’’ (Internal quotation
marks omitted.) Tartaglino v. Dept. of Correction, 55
Conn. App. 190, 193, 737 A.2d 993, cert. denied, 251
Conn. 929, 742 A.2d 364 (1999). ‘‘[T]he discretion [to
remand the case] is a legal discretion vested in the
[board],’’ and thus we review that decision to determine
‘‘whether the [board’s] failure to remand the case to
the commissioner constituted an abuse of its discretion
. . . .’’ (Internal quotation marks omitted.) Matey v.
Estate of Dember, 256 Conn. 456, 489, 774 A.2d 113(2001).
It is well settled that ‘‘when a commissioner orders
a medical examination, there is usually an expectation
among the parties that said examination will provide
strong guidance to the commissioner. Where a commis-
sioner chooses not to adopt the diagnosis of the physi-
cian performing that examination, he or she should
articulate the reasons behind his or her decision to
disregard the examiner’s report. . . . [A]lthough a
commissioner should articulate the reasons behind his
decision to disregard a § 31-294f examiner’s opinion,
the ultimate decision is always with the commissioner
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Gillis v. White Oak Corp., 49 Conn. App. 630,
636–37, 716 A.2d 115, cert. denied, 247 Conn. 919, 722
A.2d 806 (1998).
In concluding that the commissioner’s decision ‘‘com-
plied with the standard . . . delineated for a decision
which does not rely on the opinion of the commission-
er’s examiner,’’ the board was necessarily guided by
§ 31-310-3 of the Regulations of Connecticut State Agen-
cies,15 which governs the requisite content of a commis-
sioner’s decision. After interpreting the mandates of
that rule, the board concluded that the commissioner’s
decision in this case satisfied those requirements. It is
well settled that ‘‘[an appellate] court affords deference
to the construction of a statute applied by the adminis-
trative agency empowered by law to carry out the stat-
ute’s purposes. . . . [A]n agency’s factual and
discretionary determinations are to be accorded consid-
erable weight by the courts.’’ (Internal quotation marks
omitted.) Bailey v. State, 65 Conn. App. 592, 602–603,
783 A.2d 491 (2001); see also Bode v. Connecticut Mason
Contractors, The Learning Corridor, supra, 130 Conn.
App. 679 (‘‘[i]t is well established that [a]lthough not
dispositive, we accord great weight to the construction
given to the workers’ compensation statutes by the
commissioner and [the] board’’ [internal quotation
marks omitted]).
In light of the foregoing case law and principles,
which afford considerable deference to the board’s
interpretation and construction of its own regulations;
see, e.g., Bailey v. State, supra, 65 Conn. App. 602–603;
we conclude that the board did not abuse its discretion
in not remanding the commissioner’s decision for fur-
ther articulation.
The decision of the Workers’ Compensation Review
Board is affirmed.
In this opinion the other judges concurred.
1
The record before this court does not contain any reference to Dr. Ergin’s
first name.
2
O’Holleran later explained that this second surgery was performed to
cut away portions of residual scar tissue in the plaintiff’s shoulder, thereby
reducing stiffness and increasing the range of motion in the left shoulder.
3
Peerless Insurance Company, the workers’ compensation insurer for
Edson Manufacturing, is also a defendant in this case. For convenience, we
refer in this opinion to Edson Manufacturing as the defendant. See Sellers
v. Sellers Garage, Inc., 155 Conn. App. 635, 636 n.1, 110 A.3d 521 (2015).
4
During the formal hearing before the commissioner, the plaintiff agreed
with his counsel’s statements that the dolly he used was a ‘‘vertical piece
of metal with a flat bottom’’ with two wheels in the back, and that, to operate
the dolly, the operator would place an item on the flat bottom, pull the item
back toward the vertical piece of metal, and rest the weight of the item on
the dolly’s wheels.
5
General Statutes § 31-294c (a) provides in relevant part: ‘‘No proceedings
for compensation under the provisions of this chapter shall be maintained
unless a written notice of claim for compensation is given within one year
from the date of the accident . . . which caused the personal injury . . . .
Notice of claim for compensation may be given to the employer or any
commissioner and shall state, in simple language, the date and place of the
accident and the nature of the injury resulting from the accident . . . . An
employee of the state shall send a copy of the notice to the Commissioner
of Administrative Services. . . .’’
6
General Statutes § 31-294f (a) provides in relevant part: ‘‘An injured
employee shall submit himself to examination by a reputable practicing
physician or surgeon, at any time while claiming or receiving compensation,
upon the reasonable request of the employer or at the direction of the
commissioner. The examination shall be performed to determine the nature
of the injury and the incapacity resulting from the injury. The physician or
surgeon shall be selected by the employer from an approved list of physicians
and surgeons prepared by the chairman of the Workers’ Compensation
Commission and shall be paid by the employer. . . . The refusal of an
injured employee to submit himself to a reasonable examination under this
section shall suspend his right to compensation during such refusal.’’
7
During his deposition, O’Holleran testified that a Bankart lesion ‘‘is a
tear of the labrum [the cartilage that surrounds the socket in the shoulder]
off of the glenoid in . . . [the] socket.’’ He further testified that a bony
Bankart lesion is caused ‘‘by the shoulder sliding out of [the] joint either
partially, which is a subluxation, or fully, which is a dislocation,’’ which
results in ‘‘an avulsion of the labrum where it takes off a fleck of bone with it.’’
8
Dr. Steven E. Selden testified that ‘‘[a] Hill-Sachs lesion is a depression
in the humeral head that is a result of dislocations of your shoulder, where
the ball and socket come apart.’’
9
O’Holleran described bone marrow edema as ‘‘fluid [in the bone] from
an injury . . . that goes away a few months after the injury.’’ He further
testified that, because edema typically subsides after six months, the pres-
ence of edema in the plaintiff’s shoulder indicated that the plaintiff’s injury
was new and unrelated either to the 2009 or 2012 surgery.
10
At the outset of Selden’s deposition, the following colloquy occurred:
‘‘Q. You physically examined [the plaintiff], correct?
‘‘A. That is correct as well.
‘‘Q. You issued a report . . . and that’s the full report, is it not?
‘‘A. Correct.
‘‘Q. Since that time, just recently, you have been given a couple of addi-
tional medical records from the past, which you did not have, correct?
‘‘A. That is correct.’’
Neither the plaintiff nor the defendant inquired as to which additional
medical records Selden had received and reviewed prior to his December
2, 2013 deposition.
11
Subluxation is the medical term for a partial dislocation of the joint,
‘‘where the shoulder goes partly out of place.’’
12
Notably, Selden’s written addendum, much like his deposition testimony,
does not state with any degree of specificity what additional medical records
he reviewed between his December 2, 2013 deposition and his July 14, 2014
addendum to his written report. See footnote 10 of this opinion.
13
Pursuant to § 31-301-8 of the Regulations of Connecticut State Agencies,
the board ‘‘considers no evidence other than that certified to it by the
commissioner, and then for the limited purpose of determining . . .
whether there was any evidence to support in law the conclusion reached.
It cannot review the conclusions of the commissioner when these depend
upon the weight of the evidence and the credibility of witnesses. . . .’’
(Emphasis added.)
14
Since the Bode decision, the board has held: ‘‘We do not believe Bode
. . . has limited such precedents as [O’Reilly v. General Dynamics Corp.,
supra, 52 Conn. App. 813] as to the trial commissioner’s prerogative to
assess and weigh medical evidence. A trial commissioner is not obligated
to accept the most recent medical opinion presented to the tribunal. . . .
However, when a medical witness offers subsequent testimony which devi-
ates from a prior opinion, a trial commissioner must acknowledge and
reconcile the differing opinions and should the commissioner seek to rely
on the prior opinion, grounds for the reliance must be provided.’’ (Citation
omitted.) Sullins v. United Parcel Service, Inc., No. 5611, CRB 1-10-12, 2012
WL 979543, *3 n.2 (January 6, 2012), rev’d on other grounds, 146 Conn. App.
154, 77 A.3d 196 (2013), aff’d, 315 Conn. 543, 108 A.3d 1110 (2015).
15
Section 31-301-3 of the Regulations of Connecticut State Agencies pro-
vides: ‘‘The finding of the commissioner should contain only the ultimate
relevant and material facts essential to the case in hand and found by him,
together with a statement of his conclusions and the claims of law made
by the parties. It should not contain excerpts from evidence or merely
evidential facts, nor the reasons for his conclusions. The opinions, beliefs,
reasons and argument of the commissioner should be expressed in the
memorandum of decision, if any be filed, so far as they may be helpful in
the decision of the case.’’